Citation Nr: 9927124
Decision Date: 09/22/99 Archive Date: 10/05/99
DOCKET NO. 97-08 296 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for polycythemia rubra
vera, claimed as secondary to exposure to Agent Orange.
2. Entitlement to service connection for a vision disorder,
claimed as secondary to exposure to Agent Orange.
3. Entitlement to service connection for hypertension,
claimed as secondary to exposure to Agent Orange.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Richard Giannecchini, Associate Counsel
INTRODUCTION
The veteran had active military service from May 1966 to May
1968.
A perfected appeal to the Board of Veterans' Appeals (Board)
of a particular decision entered by a Department of Veterans
Affairs (VA) regional office (RO) consists of a Notice of
Disagreement (NOD) in writing received within one year of the
decision being appealed and, after a Statement of the Case
(SOC) has been furnished, a substantive appeal (VA Form 9)
received within 60 days of the issuance of the Statement of
the Case or within the remainder of the one-year period
following notification of the decision being appealed.
The present appeal arises from an October 1996 rating
decision, in which the RO denied the veteran's claims of
service connection for polycythemia rubra vera (a blood
disorder), a vision disorder, and hypertension, all claimed
as secondary to Agent Orange exposure. The veteran filed an
NOD in November 1996, and the RO issued an SOC that same
month. In February 1997, the veteran filed a substantive
appeal. The Board notes, in addition, that the veteran had
requested and been scheduled for a Travel Board hearing
before a Member of the Board in April 1999, but he failed to
report for that hearing.
The Board further notes that, in a questionnaire regarding
post-traumatic stress disorder (PTSD), received by the RO in
February 1997, the veteran appears to have made informal
claims of service connection for a seizure disorder and
migraine headaches, as a result of Agent Orange exposure.
Those claims are therefore referred to the RO for development
as is deemed warranted.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of the
veteran's appeal has been obtained by the RO.
2. The veteran has not been diagnosed with any current
disability recognized by VA as etiologically related to
exposure to herbicide agents used in Vietnam.
3. The medical evidence reflects the veteran was first
diagnosed with polycythemia rubra vera in July 1993, some
25 years following his separation from active service.
4. No medical opinion of record has related the veteran's
polycythemia rubra vera to service on a direct basis or as
secondary to herbicide exposure.
5. The medical evidence of record does not reflect that the
veteran currently suffers from a vision disorder or
hypertension.
CONCLUSION OF LAW
The veteran has not submitted well-grounded claims of service
connection for polycythemia rubra vera, a vision disorder, or
hypertension, claimed as secondary to Agent Orange exposure.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Basis
A review of the veteran's service medical records reveals no
findings or diagnoses of a blood disorder, vision disorder,
or hypertension. A treatment record, dated in May 1967,
notes the veteran as being prescribed corrective lenses for a
loss of visual acuity. During a separation medical
examination in February 1968, the veteran's blood pressure
was noted as 130/70 (systolic/diastolic), and his distant
vision reported as 20/20 and near vision as "S-1", in both
the right and left eye respectively.
Thereafter, in July 1993, the veteran underwent a general
medical examination for VA purposes, in association with a
claim for non-service-connected pension benefits. Upon
clinical evaluation, the pupils of his eyes were equal,
round, and reactive to light, and extraocular motion was
intact. The veteran's blood pressure was reported as 112/76.
The examiner's diagnoses were history of seizure disorder,
right lower limb/foot pain, poor dentition, and history of
burns to the chest.
In September 1996, the veteran filed claims of service
connection for a blood disorder, a vision disorder, and
hypertension, all claimed as secondary to exposure to Agent
Orange.
That same month, the RO received Dorn Veterans' Hospital
treatment records, dated from January 1993 to September 1996.
Those records noted the veteran's treatment for hemorrhoids,
chronic dermatitis and pruritus, headaches, right leg
numbness, degenerative disc disease of the cervical spine,
and polycythemia rubra vera. In particular, a treatment
record dated in March 1994, noted that the veteran had been
diagnosed with polycythemia rubra vera in July 1993. Another
treatment record, dated in July 1996, reported the veteran's
blood pressure as 131/73.
In an October 1996 rating decision, the RO denied the
veteran's claims of service connection with respect to
exposure to Agent Orange.
In February 1997, the RO received a PTSD questionnaire from
the veteran, in connection with a claim for that disability.
However, the information in the questionnaire provided by
veteran pertained to his claimed Agent Orange exposure. In
particular, the veteran reported that he had been sprayed
every day with Agent Orange while he was stationed at Cam
Ranh Bay, and that this had caused his body to itch terribly.
He noted that he suffered from a rash, and that the rash
manifested itself every summer. In addition, he reported
that he had been sprayed in his eyes with Agent Orange, and
that this had almost blinded him. He was subsequently
prescribed glasses while in service, but noted that currently
he still could not see very well. Furthermore, the veteran
reported that he had suffered from high blood pressure,
seizures, and migraine headaches since returning from
Vietnam.
That same month, February 1997, the RO received a VA Form 9
(Appeal to the Board of Veterans' Appeals) from the veteran.
The veteran reiterated previously made contentions regarding
his exposure to Agent Orange, and the irritation it caused
his skin, and noted that his mother had taken him to a number
of doctors following his return from Vietnam but none could
identify his skin problem. The veteran also reported that
his children suffered from the same skin disease.
II. Analysis
The Board's threshold question must be whether the veteran
has presented well-grounded claims. 38 U.S.C.A. § 5107 (West
1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). If he has
not, the claims must fail and there is no further duty to
assist in their development. 38 U.S.C.A. § 5107; Murphy v.
Derwinski, 1 Vet.App. 78 (1990). This requirement has been
reaffirmed by the United States Court of Appeals for the
Federal Circuit in its decision in Epps v. Gober, 126 F.3d
1464, 1469 (Fed. Cir. 1997), cert. denied sub nom. Epps v.
West, 118 S. Ct. 2348 (1998). That decision upheld the
earlier decision of the United States Court of Appeals for
Veterans Claims (known previously as the U.S. Court of
Veterans Appeals), which made clear that it would be error
for the Board to proceed to the merits of a claim which is
not well grounded. Epps v. Brown, 9 Vet.App. 341 (1996).
The Court of Appeals for Veterans Claims has also held that,
in order to establish that a claim for service connection is
well grounded, there must be competent evidence of: (1) a
current disability (a medical diagnosis); (2) the incurrence
or aggravation of a disease or injury in service (lay or
medical evidence); and (3) a nexus (that is, a connection or
link) between the in-service injury or aggravation and the
current disability. Competent medical evidence is required
to satisfy this third prong. See Elkins v. West, 12 Vet.App.
209, 213 (1999) (en banc), citing Caluza v. Brown, 7 Vet.App.
498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table), and Epps, supra. "Although the claim need not be
conclusive, the statute [38 U.S.C.A. §5107] provides that
[the claim] must be accompanied by evidence" in order to be
considered well grounded. Tirpak v. Derwinski, 2 Vet. App.
609, 611 (1992). In a claim of service connection, this
generally means that evidence must be presented which in some
fashion links the current disability to a period of military
service or to an already service-connected disability.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303
(1998); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992);
Montgomery v. Brown, 4 Vet.App. 343 (1993).
Evidence submitted in support of the claim is presumed to be
true for purposes of determining whether it is well grounded.
King v. Brown, 5 Vet.App. 19, 21 (1993). Lay assertions of
medical diagnosis or causation, however, do not constitute
competent evidence sufficient to render a claim well
grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992);
Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992).
Under applicable criteria, service connection may be granted
for a disability resulting from disease or injury which was
incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110
(West 1991). To establish a showing of chronic disease in
service, there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time. 38 C.F.R. §
3.303(b) (1998). If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. Id. Service
connection may be granted for any disease diagnosed after
discharge, when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(1998).
A veteran shall be granted service connection for
hypertension, although not otherwise established as incurred
in service, if the disease is manifested to a compensable
degree within one year following service. 38 U.S.C.A. §§
1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (1998).
As to the specific contention that the veteran developed a
blood disorder, vision disorder, and hypertension as a result
of Agent Orange exposure, the Board observes that a veteran
who, during active military, naval, or air service, served in
the Republic of Vietnam during the Vietnam era and has a
disease listed at 38 C.F.R. § 3.309(e), shall be presumed to
have been exposed during such service to a herbicide agent,
unless there is affirmative evidence to establish that the
veteran was not exposed to any such agent during that
service. The last date on which such a veteran shall be
presumed to have been exposed to a herbicide agent shall be
the last date on which he or she served in the Republic of
Vietnam during the Vietnam era. "Service in the Republic of
Vietnam" includes service in the waters offshore and service
in other locations if the conditions of service involved duty
or visitation in the Republic of Vietnam. 38 C.F.R. §
3.307(a)(6)(iii).
If a veteran was exposed to a herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of 38 U.S.C.A. §
1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there
is no record of such disease during service, provided further
that the rebuttable presumption provisions of 38 U.S.C.A. §
1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or
other acneform diseases consistent with chloracne, Hodgkin's
disease, multiple myeloma, non-Hodgkin's lymphoma, acute and
subacute peripheral neuropathy, porphyria cutanea tarda,
prostate cancer, respiratory cancers (cancer of the lung,
bronchus, larynx, or trachea), and soft-tissue sarcomas
(other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma,
or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of
this section, the term acute and subacute peripheral
neuropathy means transient peripheral neuropathy that appears
within weeks or months of exposure to a herbicide agent and
resolves within two years of date on onset. 38 C.F.R. §
3.309(e), Note 2 (1998).
The diseases listed at 38 C.F.R. § 3.309(e) shall have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne and porphyria cutanea tarda shall
have become manifest to a degree of 10 percent or more within
a year, and respiratory cancers within 30 years, after the
last date on which the veteran was exposed to an herbicide
agent during active military, naval, or air service. 38
C.F.R. § 3.307(a)(6)(ii).
The Secretary of Veterans Affairs has determined that there
is no positive association between exposure to herbicides and
any other condition for which the Secretary has not
specifically determined that a presumption of service
connection is warranted. See Notice, 59 Fed. Reg. 341-346
(1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996).
Notwithstanding the foregoing presumption provisions, which
arose out of the Veteran's Dioxin and Radiation Exposure
Compensation Standards Act, Public Law No. 98-542, § 5, 98
Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991,
Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the United
States Court of Appeals for the Federal Circuit has
determined that a claimant is not precluded from establishing
service connection with proof of direct causation. Combee v.
Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9
Vet.App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120
F.3d 1239 (Fed. Cir. 1997), cert. denied,
118 S. Ct. 1171 (1998). See Brock v. Brown, 10 Vet.App. 155,
160-61 (1997).
Thus, the presumption is not the sole method for showing
causation. However, as noted above, where the issue involves
a question of medical diagnosis or causation as presented
here, medical evidence which indicates that the claim is
plausible is required to set forth a well-grounded claim.
Grottveit v. Brown, supra.
The Board notes that the veteran served with the United
States Army during the Vietnam era, and was noted on his DD-
214 to have received, among other awards and decorations, the
Vietnam Campaign Medal with device 1960, and the Vietnam
Service Medal with bronze service star. The veteran has
contended that he suffers from polycythemia rubra vera, from
a vision disorder, and from hypertension as a result of Agent
Orange exposure.
In reviewing the record, we are aware that polycythemia rubra
vera, a vision disorder, and hypertension are not among the
conditions for which service connection may be presumed under
38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Accordingly,
the veteran is not entitled to any presumption that these
disorders are etiologically related to exposure to herbicide
agents used in Vietnam. See McCartt v. West, 12 Vet.App.
164, 168 (1999), wherein the Court stated that "neither the
statutory nor the regulatory presumption will satisfy the
incurrence element of Caluza where the veteran has not
developed a condition enumerated in either 38 U.S.C. §
1116(a) or 38 C.F.R. § 3.309(e)."
As previously indicated, however, the veteran could also
prevail on his claims were he to submit competent evidence
which traces causation of his disability to Agent Orange or
other herbicide exposure in service. The veteran has
contended that he served in areas of Vietnam that were
sprayed with Agent Orange, in particular Cam Ranh Bay, and
that he was heavily exposed to the chemical defoliant.
In reviewing the evidence of record, we note that the veteran
was first diagnosed with polycythemia rubra vera in July
1993, some 25 years following his separation from active
service. Polycythemia rubra vera is defined as a
myeloproliferative disorder involving all bone marrow
elements, and characterized by an increase in red blood cell
mass and hemoglobin concentration. Taber's Cyclopedic
Medical Dictionary, 1340 (15th ed. 1985). In view of this
lengthy gap between service and diagnosis, the law requires
that the veteran submit a medical opinion relating the
disease to his active service (either due to herbicide
exposure or otherwise), and he has not done so.
Furthermore, the medical evidence of record does not reflect
that the veteran suffers from a vision disorder or
hypertension. As noted above, the veteran was fitted for
glasses in service, and at separation there was no finding of
visual abnormality, with or without corrective lenses. The
veteran's blood pressure at that time was noted as 130/70.
On VA examination in July 1993, no vision disorder was
reported, and the veteran's blood pressure was noted as
112/76. Medical treatment records received from Dorn
Veterans' Hospital in support of the veteran's claims do not
note any findings or a diagnosis of a vision disorder or
hypertension. While the veteran's blood pressure was noted
on four different occasions as having a systolic pressure of
140 or greater, the most recent reading in July 1996 was
131/76.
The Board therefore concludes that the veteran has not met
the initial burden of presenting evidence of well-grounded
claims for service connection for polycythemia rubra vera, a
vision disorder, and/or hypertension, claimed as secondary to
Agent Orange exposure, under the applicable law as
interpreted in the Caluza precedent, above. In addition, the
veteran has failed to establish through medical evidence that
his hypertension manifested itself to a compensable degree
within one year of his separation from service. Therefore,
service connection may not be granted for polycythemia rubra
vera, a vision disorder, or hypertension under a direct
basis, or, with respect to hypertension, under the one-year
presumption exception.
While the Board does not doubt the sincerity of the veteran's
contentions in regard to his claims of service connection,
our decision must be based upon competent medical testimony
or documentation. In a claim of service connection, this
generally means that medical evidence must establish that a
current disability exists, and that the disability is related
to a period of active military service. Competent medical
evidence has not been presented establishing that the
veteran's polycythemia rubra vera is service-related, or that
he suffers from a vision disorder or hypertension.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303
(1998); Rabideau v. Derwinski, Montgomery v. Brown, both
supra.
In addition, as noted above, the veteran does not meet the
burden of presenting evidence of a well-grounded claim merely
by presenting his own testimony, however strongly felt
because, as a lay person, he is not competent to offer
medical opinions. See Bostain v. West, 11 Vet.App. 124, 127
(1998) ("lay testimony . . . is not competent to establish,
and therefore not probative of, a medical nexus"). See also
Carbino v. Gober, 10 Vet.App. 507, 510 (1997), aff'd sub nom.
Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999); Routen v.
Brown, 10 Vet.App. 183, 186 (1997) ("a layperson is
generally not capable of opining on matters requiring medical
knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434
(Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).
Under the law, the veteran is free, at any time in the
future, to submit new and material evidence to reopen his
claims for service connection for polycythemia rubra vera, a
vision disorder, or hypertension, claimed as secondary to
Agent Orange exposure, regardless of the fact that these
claimed disabilities are not currently shown to be service
connected. Such evidence would need to show, through
competent medical evidence, that a current disability
"resulted from a disease or injury which was incurred in or
aggravated by service." 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. § 3.303 (1998); Rabideau, Montgomery, supra.
In absence of well-grounded claims, there is no duty to
assist the veteran further in their development, and the
Board does not have jurisdiction to adjudicate them. See
Morton v. West, ___Vet.App. ___, No. 96-1517, slip op. at 5
(July 14, 1999); Boeck v. Brown, 6 Vet.App. 14 (1993);
Grivois v. Brown, 5 Vet.App. 136 (1994). Accordingly, as a
claim that is not well grounded does not present a question
of fact or law over which the Board has jurisdiction, the
claims of service connection for polycythemia rubra vera, a
vision disorder, and hypertension, claimed as secondary to
Agent Orange exposure, must be denied. See Epps v. Gober,
supra.
The Board further notes that, in its November 1996 SOC, the
RO appropriately discussed the criteria for presumptive
diseases associated with exposure to certain herbicide
agents, although it did not cite the accompanying regulation,
38 C.F.R. § 3.309(e). We are cognizant that whether BVA must
remand an appeal to the AOJ (agency of original jurisdiction)
to cure a deficiency in the statement of the case relating to
the summary of evidence, citation of statutes and
regulations, or the summary of the reasons for the AOJ's
decision will depend upon the circumstances of the individual
case." See VAOPGCPREC 16-92 (July 24, 1992).
With respect to the veteran's appeal, the Board finds that
proceeding to a decision without remanding to the RO does not
unduly prejudice the veteran. In reaching this conclusion,
we note that the veteran has not submitted any competent
evidence that his polycythemia rubra vera was incurred during
service on a direct basis or secondary to Agent Orange
exposure. In addition, there is no evidence that the veteran
currently suffers from a vision disorder or hypertension.
Therefore, after careful review of the record, the Board can
find no reason why a remand of the veteran's appeal, so the
RO could reissue an additional SOC with the appropriate
regulation citation, would be judicially expedient or
otherwise result in a different finding than that reached
previously by the RO. Such action would only unnecessarily
impose additional burdens on the RO, with no benefit flowing
to the veteran. The Court has held that such remands are to
be avoided. See Winters v. West, 12 Vet.App. 203, 207 (1999)
(en banc); Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991).
ORDER
1. Entitlement to service connection for polycythemia rubra
vera is denied.
2. Entitlement to service connection for a vision disorder is
denied.
3. Entitlement to service connection for hypertension is
denied.
ANDREW J. MULLEN
Member, Board of Veterans' Appeals